We find the legal system guilty, broken, and corrupt
The public knows something is wrong with the common law in England and its former colonies. A 2011 poll found that Australian judges are less trusted than bus drivers, police, hairdressers, and chefs, and a US poll in 2012 found that 92 per cent want change to the civil system, and 41 per cent want fundamental change.
Unlike the common law, journalism is a truth-seeking occupation; the basic obligation is to tell the customers what is really going on. Reporters thus have a duty to explore the reality of our adversary system.
Common lawyers, including academics and judges, cannot help. Law schools teach what the common law is, not what ails it or the cure (let alone where it came from or how the other system works).
If veterinary and medical schools operated like that, a lot of cats, dogs and people would be unwell, or worse.
What can help is a comparison between the adversary system and the truth-seeking (inquisitorial) system reformed by Napoleon, which affects twice as many as ours.
What is justice?
After researching the law for 11 years, Justice Russell Fox concluded that justice means fairness, and fairness and morality require a search for the truth, otherwise the wrong side may win.
Justice Fox also said the public knows that “justice marches with the truth”. That means common lawyers are the only people on the planet who believe you can dispense justice without knowing all the facts.
In the French system:
• Trained judges are in charge of evidence. On a fixed wage, they do not have an incentive to spin the process out. Most hearings take no more than a day or so.
• Evidence is not concealed, and lawyers are not allowed to question witnesses directly lest they pollute the truth with sophistry: trick questions, false arguments, etc.
• The innocent are rarely charged; 95 per cent of guilty defendants are convicted.
In the adversary system:
• Lawyers are in charge of evidence. On $300 plus an hour, they do have an incentive to spin the process out; the record is 117 years. Lawyers for white collar criminals – tax evaders, price fixers, inside traders, and so on – can run regulators round the courts for years. Trials can take months.
• Untrained judges have made rules which conceal significant evidence, and lawyers are allowed to use sophistry to make honest witnesses look unreliable.
• At least 1 per cent of people in prison (4 per cent + in the US) are innocent; more than 50 per cent of guilty defendants get off. The conviction rate in India is 16 per cent.
• Civil law is unfair to doctors and people in business and the media. Litigation can be a lottery.
That scratches the surface, but it is clear that taxpayers who pay the wages of judges, lawyer-politicians, prosecutors, police and so on pay too much for too little justice.
The comparison also tends to confirm the view of Professor Fred Rodell, of Yale law school, that the adversary system is “nothing but a high-class racket”.
However, as things stand, real change is not possible. Lawyer-politicians have been “the dominant influence” in English-speaking legislatures since the middle of the 14th century, and effectively remain an oligarchy.
It follows that change cannot begin until victims of the system combine to vote the oligarchs out, however sweet they may otherwise be.
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